These are a collection of case summaries that were written for our newsletter with the aim of providing updates on recent case law developments in environment and planning law. Decisions are complicated and nuanced - you should read the whole decision (linked to the case summary) to fully understand the case.

Williams v ACT Planning and Land Authority & Anor (Administrative Review) [2018] ACAT 128 (18 December 2018)The ACT Civil and Administrative Tribunal set aside a decision by the Planning and Land Authority to approve a development in Gungahlin. The applicant argued that the proposed development was different to surrounding houses; was contrary to the overall design and character of the existing developments; and would overshadow nearby townhouses. She was concerned that it would set a precedent for similar developments on nearby vacant blocks.

Following the previous decision of Lourandos, ACAT concluded that "Lease Conditions & Development Requirements" (LDCs) under the previous Land (Planning and Environment) Act 1991 are "lease and development conditions" for the purposes of the current Planning and Development Act 2007.

On the facts, the proposed development did not comply with the LDCs, and therefore the relevant codes (R1 of the CZD Code and R22 of the Single Housing Code). However, compliance is not necessary - under both Codes, it is sufficient if the proposed development meets “the intent” of the LDCs.

ACAT considered what was the “intent” of the development conditions and concluded that the proposed development did not “meet the intent” of the LDCs. The proposed development therefore did not comply with the relevant codes, which meant that the proposal is inconsistent with the Territory Plan and the decision set aside.

Pinkas v Conservator of Flora and Fauna (Administrative Review) [2018] ACAT 92 (20 September 2018)The applicant applied to the Conservator to remove a Yellow Box (Eucalyptus melliodora) in his Chifley backyard. The Conservator rejected the application after assessing the tree and finding that found it was healthy and did not meet any of the criteria set out in schedule 1 of theTree Protection (Approval Criteria) Determination 2006 (No 2). A Tree Advisory Panel also found the tree was healthy, and should not be removed.

The applicant then applied to ACAT for review of the Conservator's decision, arguing that the tree was a safety risk; could cause damage to nearby buildings; the tree was inappropriate given its potential size and growth habit (excluding remnant eucalypts); or was affecting solar access. The applicant also needed to show that the tree was not a remnant tree, that is, that it was not a tree already present and established in the landscape before the suburb was developed. The tribunal found on the facts that none of the criteria for removal of the protected tree were met and upheld the Conservator's decision.

McGrath and Anor v ACT Planning and Land Authority & Anor (Administrative Review) [2018] ACAT 100The applicant applied to ACAT for review of an ACT Planning and Land Authority decision to approve (on reconsideration) a development application for the construction of two single-story dwellings on a block of land in Curtain. The applicant contended that the proposal did not comply with the Multi Unit Housing Development Code and that decision had given insufficient regard to the objectives for the RZ1 zone, had not properly addressed the issues raised in the representations received and had not addressed the Conservator’s opinion that the regulated trees that were, at the time, on the subject block should be retained.

As discussed in previous newsletters, the ACAT noted that its jurisdiction is currently under consideration following the Supreme Court appeal of Sladic. However, in this case it was not necessary to discuss this issue because ACAT found that the development application was non-compliant with applicable rules and criteria. In particular, the rules and criteria for boundary setbacks and allowable encroachments were not met. The ACAT also discussed plot ratio, landscaping, surveillance, building design, solar access, principal private open space, driveway and turning space, and regulated trees for the purpose of any future development application by the developer.

Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & ORS (Administrative Review) [2018] ACAT 95This ACAT matter was an administrative review of the ACT Planning and Land Authority decision to approve with conditions a development application for the construction of a childcare center in Rivett. Noah’s Ark Resource Center operates a childcare center near the site and applied to ACAT for a review of this decision, citing reasons including a loss of community services by Noah’s Ark and non-compliance of the proposal with the Parking and Vehicular Access General Code. As discussed in previous newsletters, ACAT's jurisdiction is currently on appeal in the Supreme Court, following the decision ofSladic. ACAT noted Sladic is not binding on the ACAT because it is on appeal. ACAT followed the previous Noah’s Ark case, which contained a broader interpretation of section 121 and made a decision as if they were the original decision maker. ACAT decided Noah’s Ark had standing to bring the application for review. ACAT confirmed the approval decision but varied the conditions on which the approval was given with regards to on-site car parking and pedestrian paths.

The applicant applied to the ACT Conservator of Flora and Fauna for approval to remove a regulated claret ash tree. The Conservator refused the application. In reviewing the Conservator's decision, ACAT considered whether the criteria in Paragraph 1(b), (c) and (d) in Schedule 1 of the Tree Protection (Approval Criteria) Determination (No.2) had been met.

Paragraph 1(b) requires the tree to represent an unacceptable risk to public safety. Although the tree debris could pose a slip hazard, ACAT held that this could be addressed by normal maintenance, although it acknowledged the applicant’s age and income could make such measures harder to achieve.

Paragraph 1(c) requires that the tree threatens to cause substantial damage to a building, structure or service. The applicant argued that the tree's roots had damaged the property's driveways. However, the Conservator presented evidence that the roots in the driveway belonged to an ivy plant, and that these concerns could be addressed through the ivy’s removal.

Paragraph 1(d) requires that the location of the tree is inappropriate given its potential size. The applicant presented evidence that the clearance between the tree and major structures was less than that recommended in various published guidelines. However, ACAT placed more weight upon the Conservator's argument that the tree had already reached its full potential, and that it provided adequate clearance for access.

ACAT also held that there were no exceptional circumstances under Paragraph 3. The applicant argued that the steep incline of the driveway and busy nature of the street should be considered. However, ACAT held these attributes were common and would not affect its assessment.

This case illustrates the process by which ACAT decides whether tree removal is appropriate. In making a decision at the second stage, ACAT will consider practical aspects of an applicant's situation, such as their age or income.

The ACT Civil and Administrative Tribunal (ACAT) set aside a decision by the ACT Planning and Land Authority (the Authority) to approve a development application to consolidate two blocks (Block 7 and Block 8) and construct a multi-unit housing block.

Under the Planning and Development Act, the Authority must not approve an act which is inconsistent with the Territory Plan. Rule 3 of the Inner North Precinct Code (and the relevant Braddon Control Plan) required a “minimum block amalgamation” such that Block 6 would have needed to be included in the development application.

The Authority argued that ACAT should not adopt a plain or literal interpretation of the rules but instead use a purposive interpretation and that the purpose of the Precinct Code is to progress towards medium density housing. Applying this purposive interpretation, the Authority argued that rule 3 applied only where one of the thresholds for block amalgamation in rule 4 is triggered.

ACAT decided that the Territory Plan and codes should be interpreted literally, stating “the Territory Plan and the codes that form part of the Plan including the Precinct Code need to be applied according to what they say, not what persons think they should say. If a provision needs to be reviewed and changed, so be it. But until it is changed, it must be applied.”

ACAT similarly interpreted rule 5, relating to the maximum height of a corner block, in this way. To read the full decision click here.

Gingell & Anor v ACT Planning and Land Authority (Administrative Review) [2018] ACAT 62 (13 June 2018)This ACT Civil and Administrative Tribunal (ACAT) decision considered a multi-unit development in Weetangera. Five applicants alleged that the development approval was inconsistent with the Multi Unit Housing Development Code, referring specifically to the rules concerning site open space, building separation, and principal private open space. Other issues were raised, including the likelihood of increased on-street parking in the area. It was argued that the development was inconsistent with three RZ2 Zone objectives. ACAT held that the decision should be varied to include further conditions - including relating to the radius of the driveway, structures in front of the building line, and revised design of some of the units. ACAT also noted the potential issues with section 121 PD Act and referred to the principles set out in Sladic (which was discussed in our June newsletter!). To read the full decision, click here.

In March, the ACT Civil and Administrative Tribunal reviewed a decision to approve a mixed-purpose development in the Dickson retail area. The proposal included a redevelopment of the Woolworths car park to make way for a Coles shopping outlet. The Tribunal found that the proposed development did not meet the criteria to provide an efficient, safe and attractive urban environment. Concerns were raised in relation to traffic and pedestrian safety, and in the preservation of the heritage listed Dickson Library. There was some controversy however, relating to the jurisdiction of the Tribunal and the authority to review certain aspects of the proposal. More information can be found here.

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The Environmental Defenders Office ACT acknowledges the traditional custodians of the land, seas and rivers on which we work and live in the ACT and surrounding region. We pay our respects to the Ngunnawal elders past, present and future. We are grateful that we share this land and express our sorrow for the costs of this sharing to Australia's First Peoples. We aspire to learn from traditional knowledge and customs so that, together, we can protect our environment and cultural heritage through law.